B-107956, NOVEMBER 16, 1954, 34 COMP. GEN. 221

B-107956: Nov 16, 1954

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1954: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5. CERTIFICATE WAS ISSUED AWARDING HER SUCH BENEFIT AT THE RATE OF $913.32 PER ANNUM EFFECTIVE FROM MAY 29. WAS MAILED TO HER ON JUNE 1. THE CHECK WAS NEGOTIATED BY THE EXECUTOR OF MRS. SINCE THE CHECK WAS NEGOTIATED IN VIOLATION OF TREASURY REGULATIONS THE SUM WAS RECOVERED BY THE GOVERNMENT AND THE RETIREMENT DIVISION HELD THAT NO TITLE TO ANY GRATUITY VESTED IN THE WIDOW'S ESTATE. A JUDGMENT WAS ENTERED FOR THE PLAINTIFF FOR THE AMOUNT CLAIMED. IT IS STATED THAT SINCE THE ACT OF MAY 29. THE ATTORNEY FOR THE EXECUTOR WAS ASKED. WHEREUPON THE EXECUTOR WAS ISSUED A CHECK FOR $6. IT IS URGED IN YOUR LETTER THAT THE PAYMENT THUS MADE WAS NOT THE PAYMENT OF THE JUDGMENT AS SUCH BUT THAT THE COMMISSION ACCEPTED THE COURT'S HOLDING TO THE EFFECT THAT THE RIGHT TO THE WIDOW'S GRATUITY VESTED IN HER ESTATE AND THAT THE EXECUTOR'S CLAIM WAS THEN ADJUDICATED AND ALLOWED BY THE COMMISSION.

B-107956, NOVEMBER 16, 1954, 34 COMP. GEN. 221

COURTS - JUDGMENTS - PAYMENTS - APPROPRIATION AVAILABILITY IN THE ABSENCE OF A SPECIFIC PROVISION FOR THE PAYMENT OF JUDGMENTS IN THE ACT OF MAY 29, 1944, RELATING TO BENEFITS FOR PANAMA CANAL CONSTRUCTION EMPLOYEES, OR EXPRESS AUTHORITY FOR THE PAYMENT OF JUDGMENTS IN THE APPROPRIATIONS MADE FOR THE ACTIVITIES OUT OF WHICH THE CAUSE OF ACTION AROSE, A DISTRICT COURT JUDGMENT RENDERED AGAINST THE UNITED STATES UNDER THE SAID ACT MAY NOT BE PAID FROM APPROPRIATIONS AVAILABLE TO THE CIVIL SERVICE COMMISSION BUT MUST BE REPORTED TO THE CONGRESS FOR AN APPROPRIATION AND THEREAFTER FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT IN ACCORDANCE WITH SECTION 2414 OF TITLE 28, U.S.C.

ACTING COMPTROLLER GENERAL WEITZEL TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 16, 1954:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1954, REPLYING TO LETTER OF THIS OFFICE, B-107956, AUGUST 2, 1954, PRESENTING YOUR VIEWS WITH RESPECT TO THE PROPRIETY OF THE PRACTICE BY YOUR COMMISSION OF PAYING JUDGMENTS FROM CURRENT APPROPRIATIONS WITH PARTICULAR REFERENCE TO THE CASE OF ANDERSON V. UNITED STATES, 205 F.2D 326.

THE CASE REFERRED TO ABOVE AROSE UNDER THE ACT OF MAY 29, 1944, 58 STAT. 257, AS AMENDED, WHICH PROVIDES GRATUITIES TO CERTAIN FORMER EMPLOYEES OF THE ISTHMIAN CANAL COMMISSION AND PANAMA RAILROAD COMPANY AND TO THEIR WIDOWS UNDER PRESCRIBED CONDITIONS. YOUR LETTER RELATES THE FOLLOWING FACTS. EARLY IN 1951 MRS. CATHERINE C. ANDERSON APPLIED TO THE CIVIL SERVICE COMMISSION FOR THE WIDOW'S BENEFIT UNDER THE ACT AND ON MAY 23, 1951, CERTIFICATE WAS ISSUED AWARDING HER SUCH BENEFIT AT THE RATE OF $913.32 PER ANNUM EFFECTIVE FROM MAY 29, 1944. UNDER THIS AWARD, A CHECK FOR $6,398.31, COVERING GRATUITY FROM THAT DATE TO MAY 31, 1951, WAS MAILED TO HER ON JUNE 1, 1951. IN THE MEANTIME, MRS. ANDERSON HAD DIED ON MARCH 1, 1951, AND THE CHECK WAS NEGOTIATED BY THE EXECUTOR OF MRS. ANDERSON'S ESTATE AND DEPOSITED TO THE CREDIT OF THE ESTATE. SINCE THE CHECK WAS NEGOTIATED IN VIOLATION OF TREASURY REGULATIONS THE SUM WAS RECOVERED BY THE GOVERNMENT AND THE RETIREMENT DIVISION HELD THAT NO TITLE TO ANY GRATUITY VESTED IN THE WIDOW'S ESTATE. FOLLOWING SUCH HOLDING, THE EXECUTOR OF THE WIDOW'S ESTATE FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AND ON JULY 13, 1953, A JUDGMENT WAS ENTERED FOR THE PLAINTIFF FOR THE AMOUNT CLAIMED, $6,169.98, REPRESENTING THE GRATUITY FROM MAY 29, 1944, TO MARCH 1, 1951, TOGETHER WITH 4 PERCENT INTEREST FROM THE DATE OF THE JUDGMENT.

IT IS STATED THAT SINCE THE ACT OF MAY 29, 1944, CONTAINS NO PROVISION FOR THE PAYMENT OF INTEREST ON ANY UNPAID ACCRUED GRATUITY THEREUNDER, THE ATTORNEY FOR THE EXECUTOR WAS ASKED, DIRECTLY AND THROUGH THE DEPARTMENT OF JUSTICE, WHETHER THE EXECUTOR WOULD ACCEPT $6,169.98 IN FULL SETTLEMENT OF HIS CLAIM OR WOULD PREFER TO AWAIT SPECIAL APPROPRIATION BY CONGRESS FOR THIS SUM PLUS INTEREST. THE EXECUTOR WAIVED HIS CLAIM FOR INTEREST AND GAVE THE DEPARTMENT OF JUSTICE A ,1SATISFACTION OF JUDGMENT" FOR FILING BY THE UNITED STATES ATTORNEY, WHEREUPON THE EXECUTOR WAS ISSUED A CHECK FOR $6,169.98, THE AMOUNT THEREOF BEING CHARGED TO THE APPROPRIATION MADE FOR PAYMENT OF ANNUITIES AUTHORIZED BY THE ACT OF MAY 29, 1944.

IT IS URGED IN YOUR LETTER THAT THE PAYMENT THUS MADE WAS NOT THE PAYMENT OF THE JUDGMENT AS SUCH BUT THAT THE COMMISSION ACCEPTED THE COURT'S HOLDING TO THE EFFECT THAT THE RIGHT TO THE WIDOW'S GRATUITY VESTED IN HER ESTATE AND THAT THE EXECUTOR'S CLAIM WAS THEN ADJUDICATED AND ALLOWED BY THE COMMISSION.

INASMUCH AS THE COURT RENDERED A JUDGMENT IN FAVOR OF THE EXECUTOR AND THE AMOUNT WAS PAID TO THE EXECUTOR ONLY AFTER HE HAD GIVEN THE DEPARTMENT OF JUSTICE A " SATISFACTION OF JUDGMENT," THIS OFFICE CANNOT VIEW THE PAYMENT AS BEING OTHER THAN A PAYMENT MADE TO SATISFY THE JUDGMENT.

IT IS ALSO URGED THAT AUTHORITY FOR THE PAYMENT OF JUDGMENTS OF THIS NATURE IS PROVIDED BY THE ACT OF MAY 29, 1944, UNDER WHICH THE COMMISSION IS RESPONSIBLE FOR THE ADJUDICATION OF ANNUITY CLAIMS, THE SUBMISSION OF BUDGET ESTIMATES, AND THE PAYMENT OF ALL ANNUITIES UNDER THAT LAW. ALSO, IT IS POINTED OUT THAT THE COMMISSION IS AUTHORIZED AND DIRECTED TO PERFORM OR CAUSE TO BE PERFORMED ANY AND ALL ACTS AND TO MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY AND PROPER FOR CARRYING THE PROVISIONS OF THE ACT INTO FULL FORCE AND EFFECT. THIS ACT, IT IS STATED, IS A SPECIAL STATUTE APPLICABLE TO SPECIFIC CASES AND, CONSEQUENTLY, IN VIEW OF THE RULE THAT A GENERAL ACT ORDINARILY IS NOT TO BE CONSTRUED AS APPLYING TO CASES COVERED BY A PRIOR SPECIAL ACT UPON THE SAME SUBJECT, IT IS CONTENDED THAT THE PROVISIONS OF 28 U.S.C. 2414, ENACTED INTO POSITIVE LAW JUNE 25, 1948, ARE NOT APPLICABLE TO THE PAYMENT OF JUDGMENTS INVOLVING GRATUITIES UNDER THE ACT OF APRIL 29, 1944.

28 U.S.C. 2414 IS, IN EFFECT, A RESTATEMENT OF THE ACT OF FEBRUARY 18, 1904, 33 STAT. 41, AS AMENDED, AND PROVIDES IN PART THAT " PAYMENT OF FINAL JUDGMENTS RENDERED BY A DISTRICT COURT AGAINST THE UNITED STATES SHALL BE MADE ON SETTLEMENTS BY THE GENERAL ACCOUNTING OFFICE.' ALSO, AS POINTED OUT IN LETTER TO YOU OF AUGUST 2, 1954, WHILE THE PROVISION CONTAINED IN THE ACT OF APRIL 27, 1904, 33 STAT. 422, PROVIDING IN PART "THAT HEREAFTER ESTIMATES FOR THE PAYMENT OF ALL JUDGMENTS AGAINST THE UNITED STATES, INCLUDING JUDGMENTS * * * OF UNITED STATES COURTS SHALL BE TRANSMITTED TO CONGRESS THROUGH THE TREASURY DEPARTMENT AS OTHER ESTIMATES OF APPROPRIATIONS ARE REQUIRED TO BE TRANSMITTED," WAS REPEALED BY SECTION 301 OF THE BUDGET AND ACCOUNTING PROCEDURES ACT OF 1950, 64 STAT. 838, THE LEGISLATIVE HISTORY OF THAT ACT INDICATES THAT SUCH EARLIER STATUTE WAS CONSIDERED AS HAVING BEEN SUPERSEDED BY SECTION 201 OF THE BUDGET AND ACCOUNTING ACT OF 1921, AS AMENDED, WHICH PROVIDES GENERALLY FOR THE TRANSMISSION OF THE BUDGET TO THE CONGRESS BY THE PRESIDENT. ASIDE FROM THE FACT THAT THE ACT OF JUNE 25, 1948, WAS ENACTED PRIMARILY FOR THE PURPOSE OF ENACTING TITLE 28 OF THE U.S.C. INTO POSITIVE LAW, THEREBY MAKING IT DOUBTFUL THAT THE RULE OF STATUTORY CONSTRUCTION MENTIONED ABOVE IS OTHERWISE FOR APPLICATION HERE, IT IS CLEAR THAT SUCH RULE WOULD NOT BE FOR APPLICATION UNLESS THE ACT OF MAY 29, 1944, AS AMENDED, PROVIDES FOR THE PAYMENT OF JUDGMENTS IN A MANNER DIFFERENT FROM THAT PROVIDED IN THE GENERAL STATUTE, 28 U.S.C. 2414.

IN THIS CONNECTION AN EXAMINATION OF THE ACT OF MAY 29, 1944, DOES NOT DISCLOSE ANY PROVISION RELATING TO THE PAYMENT OF JUDGMENTS AND CONSEQUENTLY SUCH ACT DOES NOT APPEAR TO BE CONTRARY OR REPUGNANT TO THE GENERAL PROVISIONS OF LAW REQUIRING THAT JUDGMENTS BE APPROPRIATED FOR BY THE CONGRESS AND PAID ON SETTLEMENTS BY THE GENERAL ACCOUNTING OFFICE. EXCEPTIONS TO THE RULE THAT JUDGMENTS MUST BE SPECIFICALLY APPROPRIATED FOR BY THE CONGRESS ARE RECOGNIZED ONLY WHERE THE APPROPRIATIONS OR SPECIAL FUNDS FOR ACTIVITIES OUT OF WHICH THE CAUSE OF ACTION AROSE EXPRESSLY INCLUDE PROVISIONS FOR THE PAYMENT OF JUDGMENTS AGAINST THE UNITED STATES OR WHERE OTHER EXPRESS PROVISIONS OF LAW PROVIDE FOR PAYMENT OF JUDGMENTS. SEE 15 COMP. GEN. 933 AND CASES CITED THEREIN. ALSO, SEE 38 U.S.C. 443 RELATING TO UNITED STATES GOVERNMENT LIFE INSURANCE AND 46 U.S.C. 748 RELATING TO CERTAIN MARITIME ACTIVITIES.

SINCE, AS STATED ABOVE, THE ACT OF MAY 29, 1944, IS SILENT WITH RESPECT TO THE PAYMENT OF JUDGMENTS AND SINCE THE CONGRESS, AS ABOVE INDICATED, HAS SPECIFICALLY PROVIDED THAT CERTAIN JUDGMENTS MAY BE PAID BY THE AGENCY CONCERNED FROM APPROPRIATIONS PROVIDED THEREFOR, IT PROPERLY APPEARS THAT JUDGMENTS INVOLVING BENEFITS UNDER THE ACT OF MAY 29, 1944, MUST BE REPORTED TO CONGRESS FOR APPROPRIATION IN ACCORDANCE WITH THE USUAL PROCEDURE AND THEREAFTER FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR CERTIFICATION FOR PAYMENT. YOU ARE ADVISED, HOWEVER, THAT IT DOES NOT APPEAR NECESSARY TO DISTURB THE PAYMENT OF THIS OR ANY SIMILAR JUDGMENT HERETOFORE PAID BY YOUR COMMISSION.

YOU REQUEST ALSO TO BE ADVISED IN THE EVENT IT IS HELD THAT SPECIFIC APPROPRIATIONS MUST BE OBTAINED TO PAY FUTURE JUDGMENTS, WHAT ACTION SHOULD BE TAKEN CONCERNING ANNUITY PAYMENTS CURRENTLY BEING MADE TO AUGUSTIN M. PRENTISS WHOSE NAME HAS BEEN PLACED ON THE ANNUITY ROLL FOR THE REMAINDER OF HIS LIFE BASED ON A JUDGMENT OBTAINED BY HIM IN THE COURT OF CLAIMS, APRIL 7, 1953.

WHILE THE ADMINISTRATIVE DETERMINATION THAT HIS NAME SHOULD BE PLACED ON THE ANNUITY ROLE FOR THE REMAINDER OF HIS LIFE MAY HAVE BEEN BASED ON THE COURT OF CLAIMS RULING, THE JUDGMENT IN THAT CASE PREVIOUSLY HAD BEEN SATISFIED AND THE PAYMENTS IN QUESTION ARE NOW BEING MADE AS A RESULT OF SUCH ADMINISTRATIVE DETERMINATION AND ARE NOT MADE IN SATISFACTION OF THE JUDGMENT. IN OTHER WORDS, SUCH PAYMENTS ARE NO DIFFERENT FROM THOSE MADE TO AN ANNUITANT IN A CASE WHERE, BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE PRENTISS CASE, THE COMMISSION DETERMINES THAT SUCH PERSON LIKEWISE SHOULD BE PLACED ON THE ANNUITY ROLL FOR THE REMAINDER OF HIS LIFE, WHICH PAYMENTS PROPERTY MAY BE MADE FROM THE APPROPRIATION ANNUALLY PROVIDED THEREFOR. ACCORDINGLY, THE MANNER IN WHICH THE ANNUITY PAYMENTS ARE NOW BEING MADE TO PRENTISS NEED NOT BE CHANGED.